Thursday 5 September 2013 10.45 EDT
First published on Thursday 5 September 2013 10.45 EDT

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Doña Ana County Clerk Lynn Ellins didn't mince words on whether he feels frustrated that other clerks in New Mexico haven't joined him in issuing marriage licenses to same-sex couples.

"Let me put it this way, some people have balls, some people don't, alright? Some of them truly believe that they need direction from on high and they're not willing to do a constitutional analysis," Ellins told TPM in an interview on Wednesday. "Some of them are philosophically opposed so they wouldn't do it unless they were brought to the shed and whacked."

But Ellins said he doesn't blame other county clerks who haven't yet followed his lead.

"We all strive for uniformity whether it's recording documents, whether it's election law," Ellins said of his fellow clerks. "Many of them feel that until they get a direct answer from the [state] supreme court we have to wait."

When Ellins started issuing marriage licenses to same-sex couples in August, he didn't expect other counties would follow his example so quickly. Since he started, five other counties have begun issuing licenses. He estimated that he has issued 210 licenses to gay couples in the county and that over a thousand have been issued across the state.

Some of those counties issued licenses only after district judges ordered them to do so. A seventh county clerk, Robert Zamarripa, said he plans to begin issuing licenses on Monday after a judge ordered him to do so.

Meanwhile, all the state's county clerks have taken legal action in a pending same-sex marriage lawsuit. The clerks hope that by joining in the lawsuit they can eventually get the New Mexico supreme court to provide clarity on the state's ambiguous marriage law. (New Mexico is the only state in the union that has neither explicitly legalised nor banned same-sex marriage.)

After he started issuing marriage licenses, Ellins said he expected to see just a little movement on same-sex marriage in the state.

"I expected that the lawsuits that were already pending would speed up," Ellins said. But he didn't expect other counties to start issuing licenses just days after he did.

State Senator Daniel Ivey-Soto, who is spearheading the clerks' effort to get the state supreme court to weigh in on the issue, said Ellins definitely got the "ball rolling". Ivey-Soto added that Ellins, who happens to be the oldest clerk with the youngest staff, has been a "controversial" figure in the marriage licenses episode.

Ellins, 75, noted that his interest in supporting same-sex marriage is nothing new. A non-native New Mexican, Ellins called himself a civil libertarian who identified as a "Rockefeller Republican" until 2000. ("There ain't any of those anymore," he noted.) He grew up in Manhattan, went to Columbia University, and also served in the Navy. He came to New Mexico by way of Colorado where he first worked as a senior group counsel for JC Penney Company in Denver. Ellins eventually joined the University of Colorado and became chairman of the Board of Regents in 1989.

During his time on the board, in 1985, he pushed for an amendment to the university's rules that made sexual orientation "a protected class for students, faculty and staff". Such language is standard at colleges around the country now, but at the time, Ellins was ahead of the curve. "So I just didn't come to this party at the end. In fact, I was at this party before it began," he said.

"Then finally in 2002 my wife got tired of snow, which I happen to love, and we looked in Arizona and New Mexico and we decided Las Cruces is a good place," Ellins said. "It's a college town. I worked in Boulder, Colorado which was a college environment so it worked out for us."

Local Democrats tapped Ellins out of retirement to first run for elections supervisor shortly after he moved to New Mexico. He then decided to run for Doña Ana County clerk in 2008 on the Democratic ticket. Ellins's clerk position is term-limited and he says he doesn't know what to do next.

In the meantime, Ellins's decision on marriage licenses may change things dramatically in the state, no matter the outcome of the supreme court case. Conservative Republicans could push for a same-sex marriage ban on the November 2014 ballot if the supreme court sides with gay and lesbian couples. But Ellins doesn't think that will happen and argues that under the national constitution, same-sex marriage is legal, regardless of what state law says.

"Nobody voted on whether I can get married, and I don't think anybody voted on whether you can get married, and you don't vote civil rights issues because the purpose of the 14th Amendment is to protect minorities," Ellins said.

Some Republicans in the state disagree and have singled out Ellins in a lawsuit to block more same-sex marriage licenses from being issued.

"I don't think the county clerk has the authority to change the law and that's what I think he's doing," State Representative Paul Bandy told TPM in a separate interview. Ellins said he suspected conservative lawmakers targeted him specifically because he was the first clerk to issue same-sex couples marriage licenses.

Ellins said. He said he was the "first domino" and conservative lawmakers can't really go after the other clerks, who are just following court orders.

"Since I was the first and I was the guy that really pissed them off I think they decided to come after me," Ellins said.

He adds that he's not angry about that.

"No! It's business as usual," Ellins said. "I'm a lawyer, I'm used to lawsuits. I don't take it personally."